Posted: June 6, 2012
Code of Judicial Administration
CJA 02-0204. Local supplemental rules. Amend. Modifies the process by which local rules are approved.
CJA 03-0202. Court referees. Amend. In conjunction with Rule 4-704, prohibits courts from appointing court referees by whatever title, and permits clerks, under the direction of the judge and with the consent of the prosecutor and defendant, to resolve select cases to a determined outcome using a plea in abeyance process.
CJA 04-0202.01. Definitions. Amend. Excludes from the definition of a “record” documents prepared or received by a person in the person’s private capacity and documents that do not relate to the public’s business.
CJA 04-0202.02. Records classification. Amend. Removes investigative subpoenas from the list of protected records. Section 77-22-2 will regulate access to investigative subpoenas. Changes the classification of PSI reports from private to protected. Designates additional circumstances in which the name of a minor is public. Classifies as “protected” records subject to the attorney client privilege.
CJA 04-0202.03. Records access. Amend. Clarifies who has access to a private or a protected court record.
CJA 04-0202.05. Request to access an administrative record; research; request to classify an administrative record; request to create an index. Amend. Permits releasing non-public records for research purposes if the interests favoring the research are greater than or equal to the interests favoring closure.
CJA 04-0401.01. Electronic media coverage of court proceedings. New. Replaces Rule 4-401. Permits electronic media coverage of any public court hearing. Describes application and approval process. Establishes factors for denying electronic media coverage. Describes limits.
CJA 04-0401.02. Possession and use of portable electronic devices. New. Permits possession and use of portable electronic devices in courthouses. Allows judge to restrict use in courtrooms.
CJA 04-0405. Juror and witness fees and expenses. Amend. Requires prosecutors to certify to the number of miles for which a witness is entitled to payment.
CJA 04-0704. Authority of court clerks. Amend. Permits clerks, under the direction of the judge and with the consent of the prosecutor and defendant, to resolve select cases to a determined outcome using a plea in abeyance process.
CJA 06-0401. Domestic relations commissioners. Amend. Recognizes the authority of court commissioners to hear child protective order cases. Effective June 25, 2012 under Rule 2-205. Subject to change after the comment period.
CJA 07-0102. Duties and authority of Juvenile Court Commissioners. Amend. Recognizes the authority of court commissioners to hear child protective order cases. Effective June 25, 2012 under Rule 2-205. Subject to change after the comment period.
As a journalism instructor and board member of the Utah Headliners Chapter of the Society of Professional Journalists, I recognize the importance of transparency within our court system and the vital role that journalists play in facilitating that transparency. Journalists act as the eyes and ears of the public, and it is imperative that the public be made aware of the inner workings of our justice system. The electronic communication within the courtroom that CJA 04-0401.01 would allow for is a step in the right direction.
In today’s world, many members of the public rely upon electronic means of communication to gather important information. Although the written word provides some summation of what occurs within the court system, it simply cannot provide the visual and aural truths that electronic communication can.
I urge you to support CJA 04-0401.01 and be on the side of openness and transparency.
Sincerely,
Shane Farver
Utah Headliners Chapter, Society of Professional Journalists
The Salt Lake Tribune, Utah’s largest newspaper and a longtime proponent of open government, wholeheartedly endorses rule change CJA 04-0401.01 to open Utah courtrooms to electronic recording. Most states already allow cameras and audio recordings in their courts, and with this change Utah would join the mainstream in terms of courtroom transparency.
This rule change still allows for judicial discretion when cameras and audio recording would create a miscarriage of justice, and it includes protections to keep jurors and minors from being improperly identified. But the change presumes that any court proceeding should be open to electronic recording, and those seeking to close proceedings would rightly have the burden of justifying such closures.
The Tribune commends the Utah Judicial Council and its study committee for investing more than a year in researching this change and then recommending this important step. Government transparency has shown to be a paramount concern for Utahns, and this change will make it easier for all Utahns to stay better informed about their court system.
Thank you,
Tim Fitzpatrick
Deputy Editor
The Salt Lake Tribune
Having reported on court hearings for many years, I applaud this new, proposed rule, which I believe will increase the public’s appreciation of the intricate and nuanced aspects of the judicial system, as well as promote a greater understanding of the humanity of those involved.
Sincerely,
Sara Israelsen-Hartley
Reporter – Deseret News
I applaud efforts to make courts more transparent and hold officials responsible to the people they serve, but it is obvious that this was written by a former judge or at least an advocate thereof. Had it been written by the people, it would have been FOR the people, but as is, it provides so many loopholes that any judge who misbehaves can easily find a reason to keep people from recording, and doesn’t need to do so on the record. For example, in the new 4-401.01 2B rules, there are a myriad of reasons a judge could use to deny recording in even the simplest of cases, where rule of law is most often abused. It is also only required (2C) that the findings be explained orally, and not made a matter of record. Why? To protect the judges, who obviously crafted this law. Rule 6C of this same section is also problematic. What if the defendant is recording his own trial? If his camera happens to catch his own personal notes, is this not an infraction – according to the letter of the law – worthy of contempt of the court? The letter of the law is all a bad judge looks for to cover his actions. Rule 7 of the same section basically lets the judge be on notice when he is being recorded, because his permission must still be asked. How much better for the people would it be for him to assume that at any time, his actions might be fully documented?
Section .02 is even worse. Rather than convey more openness, it encourages corrupt behavior on the part of the courts, and was obviously written by the courts, not an advocate of the people they are meant to protect. For example, section 2C says that at any time, portable electronic devices can be confiscated simply because the court believes a person MIGHT try to record – a purely subjected and unprovable claim. All that a judge needs to do to confiscate a person’s property is look into the future. 3A also says he can set restrictions based any any number of subjective qualifications: decorum, saftey (seriously? a cell phone camera is dangerous?), order. 4-4-1.02 3B(ii and iii) is also misleading because it seems to give permission to record, but then states a host of subjective reasons a judge may use to circumscribe the privilege.
Recording our public officials, as last July’s Supreme Court ruling explained, is vital to the system of checks and balances in our government. There are far too many loopholes in these new rules. Any judge who wants to remove cameras from his court so there can be no record of his or her actions would not have to do much reasoning to be compliant. Is this is the people’s best interest? Or the courts? I’ve never been convicted of anything more than a traffic ticket, but even there I have seen behavior on the bench that would shock the general public and would have probably resulted in that judge’s removal had there been video evidence of the event.
As a justice reporter covering court matters on various occasions. I am pleased the court is considering this change to the outdated rule. There is already a court clerk and reporter taking notes, why should the media be restricted from using similar tools to take make a record?
The reality is prohibiting digital devices in reporting in this new age of media is a diservice to those involved on both sides in a case or trial. A digital record helps news media inform the public with even more accurate information about both sides and gives them access to something (the courtroom) that is already presumed public. Why limit or restrict the means or medium by which the public information is disseminated?
I agree the media should not disrupt with the court proceedings and there should be limits in how they broadcast proceedings. Laptops, smartphones and devices that allow recording of proceedings allow the media to preserve what happens in the courtroom and protect both sides and also display the true judicial process for the public to watch as if they were in the room themselves, instead of them only being familiar with inaccuracies they solely see in the movies.
As regional director for the Society of Professional Journalists, the nation’s most broad-based journalism organization, I fully support adopting Rule 04-0401.01, which would allow electronic media coverage of court proceedings.
The rule would allow the public to see and hear more accurately what actually takes place in Utah’s courtrooms. For many Utahns,this might provide their first look into the judicial system. This rule change will place Utah’s courts at the forefront of transparency, which benefits the courts, those who appear before its bar and the public it serves.
An open court has been one of the hallmarks of American society. Our nation’s founders understood the abuses of England’s Star Chamber and secret tribunals, and made sure that trials would be for the most part open to the public. Indeed, the U.S. Supreme has recognized the First Amendment right of the public and press to attend court proceedings. Increasing accessibility is a logical extension of the right.
Today, the judicial branch is one of the more powerful branches of government. It not only defines and enforces the laws, but it also has the power to deny people of property, liberty and — in some cases — life. But it is one branch that is partly shrouded in mystery. Most people usually do not have occasion to go to a courtroom. And past rules on media coverage have helped further obscure the court’s operation from the public eye. Permitting journalists’ video cameras and audio recorders into courtrooms will allow people to see better how the courts operate, giving them a better perspective than they would otherwise have.
The court is currently engaged in a campaign to encourage more Utahns to perform their civic duty as jurors. Opening up the courts to digital media would help advance that effort as people would have a better understanding of what happens at a trial, rather than having to rely on what they see in entertainment media.
Openness would also further ensure a defendant’s right to a fair trial. With more people being able to watch or hear a trial, it would allow the public to see whether a defendant truly had his day in court and that the justice that was being administered in their name was done without fear or favor.
This rule, and 04-0401.02, recognize the realities of our modern digital age. It makes sense to allow journalists to use the modern tools of their profession to provide the public with an accurate account of the court’s proceedings. Utah’s journalists have demonstrated their professionalism in following the rules governing still photography, and they will do so with electronic technology as well.
I respectfully urge the judicial council to adopt these rules and allow Utah to serve as an example of transparency.
Donald W. Meyers,
Region 9 Director
Society of Professional Journalists
July 31, 2012
Chief Justice Matthew Durrant
Chair, Utah Judicial Council
Re: CJA 04-0410.01
Chief Justice Matthew Durrant:
The Salt Lake chapter of the Society of Professional Journalists supports the adoption of the new rule that would allow Utah courts to permit electronic media coverage of criminal and civil trial proceedings, subject to the current process for application by media.
The Headliners Chapter equally feels that Utah citizens would greatly benefit from accurate information that can be provided by allowing audiovisual coverage of public proceedings. Allowing electronic media coverage would significantly educate the public on intricate details of the judicial and procedural process of our courts, its judges and instill confidence that justice can be served. Having cameras in courtrooms allows the public a level of previously unforeseen experience of the judicial branch in action, while gaining a deeper understanding of the -at times- complicated, lengthy and overburdened legal system.
A transparent, open government is in the best interest of the courts and public and equally serves as a powerful tool for those seeking knowledge about the judicial system and court cases which may set precedent in areas of concern for their daily lives. With the discretion of our judges and cooperation of the media, cameras during court proceedings can lend insight, transparency and confidence in our law enforcement without detracting from decorum in the courts or the right to a fair trial.
Sincerely,
Sheryl Worsley
President, Utah Headliners Chapter
Society of Professional Journalists
Cc:
Justice Jill Parrish
Timothy Shea
As a citizen who believes that our judicial system must be transparent and open; I am in favor of allowing electronic media coverage of court proceedings.
On behalf of the Radio Television Digital News Association (“RTDNA”), the world’s largest professional organization devoted exclusively to electronic journalism, we are writing to express the unequivocal support of our more than 3,000 members for proposed rules 4-401.01 and 4-401.02. By adopting these proposed rules, Utah will join the forty-six states that allow electronic media coverage in some form in trial courts. There can be no doubt that the rules as amended will create greater transparency, will increase Utah citizens’ knowledge and understanding of the court system, and will advance the public’s right to know as it pertains to the judicial system.
RTDNA has long advocated allowing electronic journalists to use the tools of their trade to cover judicial proceedings, thereby allowing the citizenry see and hear justice be done first-hand. Our organization has been involved for many years in efforts on both the state and federal level to create unlimited seating in courtrooms through audiovisual coverage. Based on the overwhelmingly positive experience of those state courts that have opened their doors to “cameras,” working closely with our members, it is clear that expanded media coverage of court proceedings has several important social and educational benefits, including more accurate coverage and a more engaged and informed audience.
Audiovisual coverage provides viewers with access to first-hand accounts of proceedings and allows viewers to directly observe participants’ demeanor, tone, credibility, competence, and veracity. These direct observations are superior to reading, hearing, or watching second-hand accounts; however, when electronic cameras are not allowed in courtrooms, only second-hand accounts are available. The electronic media is uniquely situated to provide the maximum number of citizens with direct and unmediated access to the courts. As the final report of New York’s Committee on Audio-Visual Coverage of Court Proceedings found, “reporting on court proceedings, both by newspaper and broadcast reporters, frequently is more accurate and comprehensive when cameras are present.”
Further, unobtrusive cameras have no harmful effect on the fair administration of justice. In fact, in the hundreds of thousands of judicial proceedings across the country covered by the electronic media since 1981, to the best of RTDNA’s knowledge there has not been a single case where the presence of a courtroom camera has resulted in a verdict being overturned, or where a camera was found to have any effect whatsoever on the ultimate result. Indeed, the majority of studies have concluded that the process is not only not harmed by cameras, it is enhanced by them. The Final Report from Utah’s Judicial Council Study Committee on Technology Brought into the Courtroom validates the reports from prosecutors, lawyers, jurors, judges, and witnesses from across the country: today’s cameras have no adverse effect on trial or appellate courts.
Thus, RTDNA enthusiastically supports the proposed amendments to Rule 4-401. Under the current Rule 4-401, Utah allows electronic media coverage—including filming, video recording, and audio recording—at the appellate level only on a limited basis, and generally prohibits electronic media coverage at the trial court level. The proposed amendments, however, represent a tremendous stride forward. Together, they will make Utah courts more open and accessible to the public, placing Utah among the states that allow the most electronic media access to courtrooms. Proposed Rule 4-401.01 creates a presumption that electronic media coverage is allowed in all public proceedings, both at the trial court and appellate court levels. Further, the new rule holds that a judge may only prohibit electronic coverage if the judge finds that the reasons for prohibiting coverage are sufficient to outweigh the presumption. Proposed Rule 4-401.02 allows the use of portable electronic devices in Utah courtrooms so long as the use is silent and is in compliance with proposed Rule 4-401.01. Notably, RTDNA’s members have found that enhancing traditional broadcasts of judicial proceedings through the use of newer media platforms has contributed significantly to audience attention and understanding. Overall, the proposed amendments maintain the judge’s discretion to manage his or her courtroom and ensure a fair trial while at the same time giving weight to the significant public interest benefits inherent in openness.
RTDNA applauds the Utah Judicial Council for its thoughtful and thorough examination of this issue. Adopting the rules as proposed will place Utah’s court system among those that will pave the way for the few remaining states that bar or severely limit trial court coverage. Most importantly, the new rules have the potential to illuminate Utah’s courtrooms, demystify an often intimidating legal system, and subject the state’s judicial process to an appropriate level of public scrutiny. RTDNA wholeheartedly endorses the rule change.
Mike Cavender RTDNA Executive Director
Kathleen A. Kirby RTDNA Legal Counsel Wiley Rein LLP
As a former full-time journalist and current associate professor of communications, I believe the move toward more electronic media access in Utah courtrooms is a positive development and will serve the public interest.
Proposed Rule 4-401.01(2)(A) establishes a presumption of access for electronic media during public judicial proceedings. This is a good place for the rule to start, but given that the presumption is one of access, the requirement in (3)(A) that news reporters request permission within 24 hours of a proceeding seems unnecessary. With a presumption of electronic media access, perhaps mere written notice to the court will be sufficient, rather than a requirement to gain permission for something that news reporters are told in the very same rule that they presumptively can do.
This issue notwithstanding, the rule is written well and should serve to advance the efforts of Utah’s judiciary to administer the law while educating the public. The potential for education with electronic media access to judicial proceedings is great. Scholarly studies and pilot projects in several states have shown electronic media access generally does not negatively impact judicial proceedings, and the proposed Rule 4-401.01 acknowledges that a judge may act to protect the interests and rights of individual courtroom participants if the reasons are “sufficiently compelling” (section (2)(A)). This is appropriate.
This rule will bring Utah in line with other states, all 50 of which now permit some form of electronic media access to judicial proceedings.
Edward L. Carter, J.D. LL.M.
Utah State Bar #09871
yes, i agree that they should put camera’s in court room’s.if they did the crime there face should be seen by the public. let’s show these criminals to the people.especially those that do crime in every street in salt lake and get caught. perhaps this will put a curb on the no good two timing thieves out there so that this possibly will stop more crime of breaking into cars, stealing cars, taking away people’s livelihood, they work so hard for.let’s put a stop on crime once and for all.
I believe electronic media should be banned. It only allows a platform for perpetrators to be recognized and I feel they will want their “15 minutes of fame” if media is automatically allowed.
The media are also whores for bad news and will create it if it doesn’t exist naturally.
If someone in the public feels they have a right to know everything that is going on, let them put in the personal effort to investigate rather than handing it to anyone on a silver platter.
Before such a radical rule as this one is adopted, let us look at the horrible example of having TV cameras at the O.J. Simpson murder trial. I cite Vincent Bugliosi, one of the greatest prosecutors of modern time, from his work “Outrage: The Five Reasons Why O.J. Simpson Got Away With Murder” as to why TV cameras were not good for that case or any other:
With respect to cameras in the courtroom, in my opinion they don’t belong, not in [the O.J. Simpson] case, not in any case. Televising the trial turned it into a national soap opera. Without the cameras, the nation wouldn’t have been exposed to the absurd spectacle of the talking heads (since they couldn’t talk about something they weren’t watching), with the resultant “in the air” harm to the prosecution effort. But there is an even more substantive objection to having cameras in the courtroom.
A trial is a serious and solemn proceeding that determines whether a person’s liberty, and sometimes his life, should be taken away from him. Anything that interferes, or even has the slightest potential of interfering, with this determination should be automatically prohibited. Most people are self-conscious about speaking in public, even before a small audience. With cameras in the courtroom, sometimes millions of people are watching. Even if we make the doubtful assumption that most witnesses will not be affected, certainly, at least here and there, some are not going to be natural. They are going to be more shy and hesitant, or perhaps they will put on an act, not just in their demeanor, but much worse, in the words they use in their testimony. When this happens, the fact-finding process and the very purpose of a trial have been compromised.
Witnesses aren’t the only ones affected. The Los Angeles Daily News reported in the late summer of 1994 that as a result of a murder trial then being televised on Court TV, “the defense attorney bought two new suits, the judge’s wife makes sure his hair is properly gelled before he leaves for work in the morning, and the court clerk makes an effort to keep her pen out of her mouth.” Is it unreasonable to suggest that if people alter their physical appearance because of the camera, they may alter their words?
We know from the mouths of lawyers on the Simpson case that the TV cameras were having influence on them, encouraging theatrics and posturing. Gerald Uelman, the scholarly former dean of the Santa Clara University School of Law, who argued most of the defense team’s legal motions, said in June 1995, while the trial was still in progress, that he originally favored TV cameras in the courtroom because they would “open the walls of a tiny courtroom and allow everyone who was interested to come in to observe and learn.” But he said he now shudders “at how naive and idealistic I was. The unprecedented public scrutiny of this case has intruded to alter the behavior of all of the participants in many ways, some subtle, some not so subtle.”
Also in June, Chris Darden told reporters: “I dislike having cameras in the courtroom. The lawyers cater to the cameras. That’s been proven time and time again.” Shortly after the trial, Barry Scheck made similar comments. But why did we have to learn this from the trial? Common sense would have told us. . . .
What about the argument frequently used by the media that televising trials educates the public? It’s transparent sophistry. The media’s only motivation, though not an improper one, is commercial. Although televising trials may indeed educate the public, that obviously is not the principal reason why people watch trials such as the Menendez and Simpson cases on television. It’s a form of entertainment for them, pure and simple. Televise a breach of contract or automobile collision lawsuit and see how many people watch. The entertainment aspect of the Simpson trial became so ludicrous that time and time again, the talking heads, and those who called in on these shows, actually complained that certain lawyers and witnesses, as well as certain evidence, were too boring and dull for their tastes—which is to say they wanted, were almost demanding, better and more scintillating entertainment.
Even given the ancillary benefit of being educational, the sole purpose of a criminal trial is to determine whether or not the defendant is guilty of the crime. It is not to educate the public. (Pgs. 82-3).
The problems that TV cameras create are not limited to the attorneys and the parties. The judges are also affected in a negative way. Bugliosi goes on to say that Judge Lance Ito, who presided over the O.J. Simpson trial was obviously affected by the attention of TV cameras:
But although the cameras could only have a negative effect, if any, upon the trial proceedings, they stayed, right to the very end. Any they stayed, of course, because of one person and one person only, the only person who had the discretion and authority, under Rule 980 of the California Rules of Court, to pull the plug: Judge Lance Ito. Why didn’t he? Even assuming he had what he believed to be valid reasons for keeping the cameras, one of his reasons was most assuredly improper—Ito loved to perform in front of these cameras. At least that seems to be the consensus of virtually all of the reporters who covered the trial. Reporters called him “Judge Ego.” He seems to “relish the presence of the television cameras. He likes the limelight,” Newsweek said.
I knew for sure that Ito was out of his depth in this trial when early on he started inviting celebrities visiting the proceedings back to his chambers, particularly talk show hosts whose programs covered the trial. I don’t have anything against these talk show hosts, but it was unseemly and undignified behavior for a judge presiding over an important murder trial. What conceivable reason could Ito possibly have had for being so eager to play host to these celebrities other than that he was concerned with what they might say about him on the air? (The only other possibility that occurs to me is almost equally damning—that Ito lionizes celebrities, like so many of his fellow citizens. But if he does, this is at least one piece of circumstantial evidence that he did not possess the intellectual maturity to preside over a case of this magnitude.) Id. at 83-4).
In addition to the reasons given by Mr. Bugliosi for not having TV cameras in the courtroom, both the Board of District Court Judges and many of the Utah trial judges are against it. Also, there are no TV cameras in the federal trial courts or the U.S. Supreme Court.
Common sense and the protection of the parties’ constitutional rights dictate that this rule should not be adopted.
I write in support of the proposed rule regarding portable electronic devices in courthouses, with one notable exception. The proposed rule recognizes the value and ubiquity of portable electronic devices in our modern world by setting forth the general rule that such devices may be used anywhere in the courthouse, including courtrooms, except where otherwise limited by the rule or judge order. Unfortunately, this general rule is seriously undermined by the provision that gives judges complete and unlimited discretion to ignore the general rule for whatever reason (or no reason) and ban the use of portable devices without having to make a finding that some countervailing judicial interest is adversely impacted by the presence or use of portable devices. This is a classic tail wagging the dog situation where the exception swallows the rule. Instead of requiring a judge to abide by the general rule (unless one or more of five articulated exceptions exist) the proposed rule merely “encourages” judges to follow the general rule and not impose restrictions on use unless the device “might” interfere with the administration of justice, disrupt the proceedings, pose a threat to safety or security, compromise the integrity of the proceedings, or threaten the interests of a minor. The words “encourage” and “might” are nowhere to be found in the language of the rule proposed by the committee which studied the portable device issue for over a year and drafted the original language of the proposed rule. The allowance of unlimited discretion to a judge to ban portable devices for any reason whatsoever and without requiring an explanation turns the general rule on its head and is inconsistent with and ignores
(1) the language of the rule as originally proposed by the Social Media Subcommittee of the Judicial Council Outreach Committee (Subcommittee);
(2) the subsequent approval of the Subcommittee’s proposed rule by the Judicial Outreach committee (Outreach Committee);
(3) the subsequent approval of the rule by the Judicial Council Study Committee on Technology in the Courtroom (Study Committee); and
(4) other similar rules (e.g. the proposed rule governing cameras in the courtroom) where judges are required to state on the record why the general rule is being deviated from and identify one or more of the identified reasons for the deviation.
The Social Media Subcommittee, which I chaired, was comprised of eleven court executives, practicing lawyers and judges from all court levels and studied the issue for a year. The Subcommittee recognized the benefits to the public, lawyers and the media in allowing (under controlled conditions) use of mobile devices in courthouses. The Subcommittee recognized that improper use of mobile devices, however, may pose a potential threat to the fair administration of justice. Accordingly, the Subcommittee identified and set forth five appropriate circumstances when a judge may limit or ban portable devices, but contemplated judges making a finding that one or more of the five circumstances were present. The five circumstances, which were extensively discussed and debated by the Subcommittee, were broadly drafted to give judges maximum, but not unlimited, discretion to forego the general rule. Turning the five articulated reasons for deviating from the general rule into simple suggestions is inconsistent with both the spirit and letter of the Subcommittee’s recommended rule.
The Outreach Committee also approved the rule as proposed by the Subcommittee. The Outreach Committee has an even broader composition, including not only judges, attorneys and court executives, but also a public member. The grafting on of the new language also undercuts the action of the Outreach Committee and accords its approval little weight.
The Judicial Council Study Committee reviewed the Subcommittee recommendation with a fresh set of eyes and debated the policy over several months. On a 9-3 vote, the Study Committee approved (with minor revisions not relevant here) the rule as recommended by the Subcommittee and Outreach Committees. In adopting the rule (and rejecting a plea by the three dissenting voters to give judges unlimited discretion) the Study Committee made the following finding, which is worth noting here:
The proposed policy is built on the philosophy that the judiciary should focus on regulating conduct that is injurious to the judicial process and not on regulating the types of electronic devices that may or may not be allowed in the courthouse or individual courtrooms.
The new language flies in the face of the above finding and allows a judge to ban portable devices not because of any feared injurious conduct, but simply because the judge does not like the device.
Finally, it is fairly common for a judicial rule which reflects a policy position, but allows departure from that policy for identified reasons, to require the applicable reason for a departure to be articulated. This insures that a judge is operating within the contemplated policy and is not ignoring the policy for arbitrary or capricious reasons. In my view, the new language grafted onto the proposed rule essentially eviscerates the underlying policy determination that there is value in allowing portable devices in courtrooms and that use of the devices, in many or most instances, may be done without adversely impacting the fair and impartial administration of justice.
Respectfully submitted,
Randy L. Dryer
I am legal counsel for the Utah Media Coalition, a coalition of Utah’s daily and weekly newspapers and radio and television broadcasters. We support the new proposed rule for cameras in the courtroom. One of the attorneys associated with our group, Jeff Hunt, has served on the committee studying this rule and has often explained our positions and concerns about this issue. The proposed rule seems to represent a fair balancing of the competing interests on this issue. It would vault Utah into the position of having some of the most open and accessible courtrooms in the nation regarding cameras in court. We believe this will benefit the public and enhance the integrity and credibility of the judicial system. We urge adoption of the rule. Please feel free to contact me if you have any questions.
Mike O’Brien
Jones Waldo
801-521-3200
I agree with letting the media record in the courtrooms. Court cases (excluding juveniles cases) are already a matter of public record so why not let the interested parties watch? There are many misconceptions about the judicial system because people in general do not see it in action. However, I agree there is a danger in letting it go too far and turning high publicity trials into TV soap operas. If this does pass, judges and the media need to be warned to tread ethically and not abuse this power to infringe on the rights of others.
Judge John Walton, Judge Rand Beacham and I wish to comment on the proposed rule 4 – 401.01, Electronic Media Coverage of Court Proceedings. Open electronic media access to the courts appears to be a good idea in theory. Furthermore, we have no objection to a rule which establishes some factors that a judge might consider in determining whether electronic media coverage, such as live streaming, should be permitted. However, we are very concerned about the shift in presumption, in essence requiring a judge to justify his or her efforts to adopt procedures that would assure a fair hearing for all concerned. Other branches of government have, by rule or statute, gradually limited the discretion of trial court judges over the years. It is somewhat troubling to have those in charge of the judiciary also suggest that our discretion be limited in matters relating to activity in the courtroom.
We are aware of the argument that disruptions in the courtroom because the media is present are, if a problem at all, de minimis. That argument however, carries very little weight with those of us who are in the courtroom experiencing those de minimis disruptions. Despite what some may believe, we don’t have security personnel or metal detectors to simply annoy the majority. Security measures exist in order to avoid the de minimis security breach. In the context of security, even one problem is too many. Regarding disruptions in the courtroom we believe that the same analysis should apply. We would hope that people with a political agenda or a desire to simply attack the reputation of others would not use the availability of electronic media in the courtroom to further their agenda. However, we fear that there are those who will do precisely that.
We of course appreciate the fact that, although the burden would shift to judges to justify excluding the electronic media, we would still have that option upon appropriate findings. However we anticipate that those findings would be made in the very type of case the media would like to cover live in the courtroom. The media will be much more anxious to cover cases involving the possibility of an outburst by a victim or a member of the victim’s family or by a witness or a litigant. In those circumstances there might be sufficient justification to deny a request for electronic media in the courtroom. However, we expect that denial of such a request will prompt fairly contested hearings for which we have little time.
In jury trials we are concerned that live streaming may make available to members of the jury information that would not otherwise be accessible. This could include motions considered outside the presence of the jury but which may be interesting enough to be broadcast on the evening news.
In Cedar City, one of the court house locations in the Fifth District, the defendant in a criminal case is brought to the back door of the courthouse and then escorted through the back door into the building. The defendant is exposed to at least two direct lines of sight from taller buildings for about 10 to 20 feet of that journey. An attempt to harm the defendant would be fairly easy as it is. Live streaming of proceedings so that an attack of that nature could be coordinated could increase the possibility of such an event.
As judges we like to see all of the courtroom and we prefer that our bailiffs see the entire courtroom as well. A tripod with a camera on top of it could restrict the opportunity to view activity in the courtroom, presenting a potential security risk.
Some judges conduct a portion of jury selection in camera. (That phrase may take on an entirely new meaning if this rule is passed.) Some of us don’t have offices large enough to accommodate everybody that needs to be there plus a tripod with a video camera.
We realize that the Judiciary in Utah is frequently on the cutting edge of new developments. We’re just not sure that restricting a judge’s control over his or her courtroom by creating a presumption in favor of electronic media access is the direction the courts in Utah should be going. This proposed rule neither corrects a problem of which we are aware nor does it increase the quality of justice for those who appear in our courtrooms.
The Hon. Matthew B. Durrant, Chairperson
Utah Judicial Council
450 South State Street
P.O. Box 140210
Salt Lake City, Utah 84114-0210
Re: Code of Judicial Administration Proposed Rules 4-401.01 and 4-401.02, Electronic Media Coverage of Court Proceedings and Possession and Use of Portable Electronic Devices, Respectively
Dear Chief Justice Durrant:
The Reporters Committee for Freedom of the Press (“the Reporters Committee”) submits the following comments in response to the June 9, 2012, drafts of Code of Judicial Administration proposed Rules 4-401.01 and 4-401.02. We thank you for this opportunity to comment.
By way of background, the Reporters Committee is a voluntary, unincorporated association of reporters and editors that works to defend the First Amendment rights and freedom of information interests of the news media. The Reporters Committee has provided representation, guidance and research in First Amendment and Freedom of Information Act litigation since 1970. As advocates for the rights of the news media and others who gather and disseminate information about issues that affect the public, we have a strong interest in the policies governing the rights of journalists to monitor and report on the proceedings of court systems nationwide. As such, the Reporters Committee commends the Judicial Council for its approval of rules that serve this interest, and strongly supports the proposals.
I. Comments on Proposed Rule 4-401.01: Electronic Media Coverage of Court Proceedings
The Reporters Committee supports the Judicial Council’s proposed rule regarding the use of cameras and other recording devices in criminal and civil trial court proceedings in Utah. It strengthens the opportunity for meaningful public access to courtroom proceedings while appropriately protecting the interests of judges, parties, witnesses and jurors.
a. Access to the courts is a recognized right that offers benefits to the public, as well as the judicial system.
Courts have long recognized that public access to courtroom proceedings provides benefits to both the judicial system and the public. In Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606 (1982), the U.S. Supreme Court observed that the right of public access to criminal trials “plays a particularly significant role in the functioning of the judicial process and the government as a whole.” The Court has noted that increased public access to judicial proceedings “enhances the quality and safeguards the integrity of the factfinding process,” id., by discouraging perjury, the misconduct of participants and decisions based on secret bias or partiality. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 569 (1980) (plurality opinion). Moreover, the Court has found that public access “heighten[s] public respect for the judicial process” and allows the public to “participate in and serve as a check upon the judicial process — an essential component in our structure of self-government.” Globe Newspaper Co., 457 U.S. at 606.
The public greatly benefits from increased access to the judicial process. The Supreme Court has noted that there is a “therapeutic value” to the community by allowing it to reconcile conflicting emotions about high-profile cases. Richmond Newspapers, Inc., 448 U.S. at 570. Additionally, public access reassures the public that its government systems are working properly and correctly, and enhances public knowledge and understanding of the court system. Id.
In more recent times, the public has relied greatly on the news media as its surrogate at courtroom proceedings. The Supreme Court recognized as much, noting that most people acquire information about the court system “chiefly through the print and electronic media.” Id. at 573. Allowing cameras to take the courtroom to the people, either in part or in whole, allows the media to best serve as public surrogates by providing unfiltered, unfettered, uncorrupted access to the judicial system. Viewing courtrooms through the lens of a camera allows the public to get as close to the courtroom as possible and directly observe the administration of justice.
Importantly, these benefits come with few strings attached. Technological advances have eliminated the concerns that cameras will create a physical disturbance in the courtroom.
Cameras now operate in near silence without potentially distracting bright lights and can easily fade into the background in a courtroom setting. In fact, as the New Hampshire
Supreme Court noted, a number of studies have reached the same conclusion: Cameras in the courtroom cause very limited, if any, physical distractions. In re Petition of WMUR Channel 9, 813 A.2d 455, 459 (N.H. 2002) (“Advances in modern technology, however, have eliminated any basis for presuming that cameras are inherently intrusive. In fact, the increasingly sophisticated technology available to the broadcast and print media today allows court proceedings to be photographed and recorded in a dignified, unobtrusive manner, which allows the presiding justice to fairly and impartially conduct court proceedings.”).
b. The recommended presumption of electronic media coverage will promote public access while retaining safeguards.
The Judicial Council’s recommendation for creating a presumption of electronic media coverage will strengthen public access to courtroom proceedings while continuing to provide basic procedural safeguards to protect the legitimate interests in sometimes shielding a particular courtroom proceeding from the lens of a camera. A presumption of access does not prevent a court from limiting court access for good cause; it is simply a default choice that can be overcome by a showing that various interests of the parties are sufficiently compelling to outweigh the presumption. The same procedural safeguards found in the current rule would remain.
Indeed, the recommended new rule preserves the strong and important protections already in place under the current formulation of the rule, requiring the judge to consider a multitude of factors, including the fair trial rights of the parties, the privacy and safety of parties, witnesses and jurors, the risk of distraction, the adequacy of the courtroom’s facilities and any other factor that may influence the fair administration of justice.
c. Specific court findings regarding electronic media coverage promote judicial administration and the rights to appeal.
The Reporters Committee also strongly supports the Judicial Council’s recommendation to require specific on-the-record findings in support of a court’s prohibition or restriction on the use of cameras or other recording devices. The current rule already requires the court to consider specific factors in deciding whether, in the exercise of his or her discretion, to permit photography; this proposal would simply require the court to disclose the grounds for its decision. Such a requirement is a net positive for both the administration of justice and the appellate process: It helps to ensure that the trial court makes well-informed decisions after hearing all interested parties and provides the parties with a means for understanding the court’s rationale for its decision.
Moreover, requiring such findings also would help ensure that courts follow the important demands of the U.S. Supreme Court in restricting camera access. In Chandler v. Florida, 449 U.S. 560, 582 (1981), the Court dismissed the claim that cameras in a courtroom unduly prejudiced the specific criminal trial before it because there was “no evidence that any participant in this case was affected by the presence of cameras” and therefore “no showing that the trial was compromised by television coverage.” By demanding basic evidentiary findings, the safeguards proposed by this Council set forth guidelines for a judge to consider the evidence the Supreme Court referred to in Chandler.
d. The definition of a “news reporter” subject to the proposed rule is consistent with the constitutionally protected function the media perform.
The unprecedented growth in size, scope and popularity of the Internet has transformed the news industry. As mainstream news organizations increasingly rely on their websites to deliver their content and attract readers, and nontraditional online outlets provide information about current events of public interest, the definition of who qualifies as a journalist can no longer fit squarely into a framework of what the news media traditionally have been.
Many courts nationwide have long recognized this broad definition, holding that nontraditional newsgatherers may invoke various privileges that belong to reporters if they can establish that, at the time of newsgathering, they had the intent to disseminate news to the public. See von Bulow v. von Bulow, 811 F.2d 136, 144 (2d Cir. 1987); see also Shoen v. Shoen, 5 F.3d 1289, 1293 (9th Cir. 1993) (noting that “[w]hat makes journalism journalism is not its format but its content”). By focusing on the reporter’s function and intent, rather than his or her title or credentials, the proposed rule adopts a standard that accurately reflects modern and future newsgathering practices.
II. Comments on Proposed Rule 4-401.02: Possession and Use of Portable Electronic Devices
The Reporters Committee supports the Judicial Council’s proposed rule regarding the use of portable electronic devices in Utah trial courts. It reflects an understanding of changes in technology and journalism and enhances reporters’ ability to do their jobs more effectively.
In recent years, the social media service Twitter and similar electronic media that allow live, online updates have become some of the most valuable reporting tools for journalists who regularly cover court proceedings, particularly in competitive news markets. Tweeting and live blogging have proven especially effective in covering courts, where the length and formality of proceedings often prevent journalists from providing timely reports to readers. But reporters now use courtroom tweets and live blogs to provide quick updates throughout a trial and share observations that may not make it in the main news article but that their followers may find interesting. In the involuntary manslaughter trial of Dr. Conrad Murray in the death of Michael Jackson last November, The Los Angeles Times’ @latimesMJ sent out several courtroom tweets daily to its nearly 8,600 followers. The local ABC news station sent out nearly 1,900 tweets to about 3,000 followers during the six-week trial. Nicole Lozare, More Reporters Tweeting from Courtroom, The News Media & The L., Fall 2011, at 6, 6, available at http://www.rcfp.org/browse-media-law-resources/news-media-law/news-media-and-law-fall-2011/more-reporters-tweeting-court. In short, the ability to use laptop computers, cellular phones and other electronic devices in courtrooms enables journalists to meet the demands of their increasingly digital readers.
And much like live camera coverage, the use of electronic media in this manner often provides near-contemporaneous accounts of court proceedings that provide greater public insight into how the judicial process operates — a benefit that serves the judicial system as much as it serves the public. “I thought the public’s right to know what goes on in federal court and the transparency that would be given the proceedings by live-blogging outweighed any potential prejudice to the defendant,” U.S. District Judge Mark Bennett of Sioux City, Iowa, said in an interview with the ABA Journal, explaining why he allowed a Cedar Rapids Gazette reporter to cover the tax fraud trial of a local landlord through live courtroom updates.
We thank you for the opportunity to comment on the Judicial Council’s proposed rules. The Reporters Committee strongly supports the proposals and commends the Council for its recognition of the important interests underlying the public’s and the news media’s right of access to judicial proceedings.
Sincerely,
Gregg P. Leslie, Interim Executive Director
Kristen Rasmussen, McCormick Legal Fellow
The Reporters Committee for Freedom of the Press
Re: CJA 04-0401.02. Possession and use of portable electronic devices. New. Permits possession and use of portable electronic devices in courthouses. Allows judge to restrict use in courtrooms:
Wouldn’t now be a good time to allow people to make their own recordings of court proceedings using their own personal recording devices? The court’s audio recording is still the official record, so how does my making my own recording (and thus saving the time and money I’d otherwise spend on ordering a copy of the official recording from the court) prejudice anyone? I see nothing but upside to allowing people to make their own recordings.
I write in support of the rule to allow cameras in the courtroom, as well as more open use of electronic communications technology within the court.
For years now, the Utah Supreme Court has shown by example that it can be done, and with minimal disruption to the proceedings. By allowing news media to pool resources to provide coverage, it further reduces the impact to the court system.
I have covered trials in other states where cameras are allowed in the court. In those cases, the judge has exercised wise discretion to protect both victim/witnesses and a jury, but also appropriately balancing the public’s right to know by allowing coverage of a proceeding.
Surveys conducted by the courts in Utah and other states have found that a large majority of those who get their news about the judiciary get it from the news media. To quote from Justice Christine Durham’s welcome letter in the Utah State Courts’ official media guide:
“The Administrative Office of the Courts recently conducted a survey to determine the level of public trust and confidence in the Utah State Courts. Respondents ranked media as their number one source for information about Utah’s judiciary.
Accurate reporting is essential to ensuring the public receives a clear picture of Utah’s courts.”
By allowing television cameras and other electronic devices in the courtroom, you are doing just that.